Water Courses, Cent. Dig. §§ 295, 296; Dec. [Ed. Note.-For other cases, see Waters and Dig. 203(13).] 2. WATERS AND WATER COURSES —203 (1)– PUBLIC WATER SUPPLY - REGULATIONSWAIVER. the remaining lot was expressed by them | though without faucets attached to be used by prior to the judgment obtained by Miller for furnishing water directly. $47.50. After that judgment the amount of $2.50 tendered by the plaintiff to complete the transaction was not sufficient to give the defendants the price of the lot as originally agreed upon, and the defendants were practically compelled, in the position in which they found themselves, to refuse to give the plaintiff a deed. The recovery by Miller of the amount which he had paid seems to have upset the whole deal so far as the remaining lot was concerned, and to have opened the way for the plaintiff to recover the amount which she had paid to the defendants. [3, 4] The defendants further contend that the plaintiff cannot recover in this action because, with full knowledge of the suit of Calvin B. Miller against them, she stood by and permitted said Miller to sue for the sum of $147.50, in which amount was included the sum of $25 which she had paid, and because, further, she was present in court to testify in behalf of the plaintiff in that case. The plaintiff here was not a party to the former suit of Miller. She did not testify as a witness therein, and was not present at the trial, although she was summoned as a witness at some previous time when the case was not reached. We cannot say that under the testimony upon this point the plaintiff is estopped from prosecuting her suit. Besides it is clear that the amount awarded to Miller in the former suit only covered the sum of $47.50 which he had himself advanced, and cannot be deemed to include the $25 furnished by the plaintiff. We think that the plaintiff is entitled to recover the sum of $25 which she advanced. The plaintiff's exception to the denial of her motion to direct a verdict in her favor for $72.50 is overruled. The plaintiff's exception to the granting of the defendants' motion to direct a verdict in their favor is sustained. The defendants may appear before this court on Monday, July 3, 1916, at 10 o'clock a. m., if they shall see fit, and show cause, if any they have, why this case should not be remitted to the superior court, with direction to enter judgment for the plaintiff in the sum of $25. 1. WATERS AND WATER COURSES A public water company whose schedule of rates, established prior to May, 1907, showed a rate of $5 per annum for a bathtub installed upon the premises of the consumer, but which for a number of years had not exercised its right to charge such rate in cases where a customer, though having bathtubs in his house, had cut off the direct water supply thereto, was not required to continue such practice after it found that customers were taking advantage of its leniency and were surreptitiously using water in bathtubs for which no payment was made; and a rule that no deduction would be made for fixtures claimed to be nonused was merely a notice to water takers that the company intended to enforce the rate already established, and hence did not violate its contract with the town in May, 1907, that during the term of a franchise then granted, it would not charge in excess of the rates then established. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 290; Dec. Dig. 203(1).] 3. WATERS AND WATER COURSES 203(10)— PUBLIC WATER SUPPLY-REGULATION-REA SONABLENESS. A rule of a public waterworks company declaring that no deduction would be made for fixtures claimed to be nonused, and that every fixture used or not would be deemed used, and would be charged for while connected with the water pipe or waste pipe, adopted to collect its flat rate of $5 for the first bathtub and $4 for each additional tub, and to prevent a growing pipes with its water supply, was a reasonable use of water in tubs not directly connected by regulation. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 294; Dec. Dig. 203(10).] Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Judge. Bill for injunction by James J. Walsh against the Bristol & Warren Waterworks. Decree for defendant dismissing the bill, and plaintiff appeals. Affirmed, and cause remanded to the superior court, with direction to vacate the preliminary injunction continued in force pending the appeal. Cooney & Cahill, of Providence, for complainant. Mumford, Huddy & Emerson, of Providence (Charles C. Mumford, of Providence, of counsel), for respondent. PARKHURST, J. This is a bill in equity filed in the superior court sitting for the counties of Providence and Bristol, wherein the complainant seeks to enjoin the respondent from shutting off the water supply at his house in pursuance of certain rules established by the respondent. The superior court entered its decree dismissing the bill, and the complainant thereafter duly perfected an appeal from that decree to this On a bill to enjoin a water company from shutting off the water supply at plaintiff's tenement property in pursuance of certain rules established by the company, evidence held to show that plaintiff's bathtubs, connected with the court. The cause is now before us upon this sewerage system, were being used by his tenants, appeal. It appears from the pleadings and testi- | thereafter decided not to have water in the mony that the respondent is a corporation bathrooms and so notified the respondent, created by the General Assembly of the state and was informed that in that case he of Rhode Island for the purpose of supply- should remove the pipes and water fixtures ing water for commercial and domestic pur- provided in connection with the bathtubs, poses to the residents of Bristol, Warren, which he did. and Barrington, and for the purposes of its business, rightfully uses the public highways, roads, and streets within those towns. For many years the plaintiff has been a customer of the respondent and has had upon premises owned by him certain faucets, water taps and receptacles for water, all of which have been supplied and furnished with water through the pipes and mains of the respondent corporation. In May, 1907, the town of Bristol and the respondent corporation entered into a contract by which the respondent acquired an exclusive right and privilege to use the public streets, lanes, and squares of that town for the laying and maintaining of its pipes for a period of 50 years from May 15, 1907. In this contract is the following clause: "The company will not, during said term, charge for water for domestic or manufacturing purposes in excess of the rates now established, and will, as soon as business conditions and the requirements of the company will reasonably warrant, make reasonable and equitable reductions of the rates or charges for water for said purposes." The bill avers that the plaintiff has always paid all sums of money properly required by the defendant for the use of water on his premises at 38 Bourne street in Bristol, and the respondent has furnished him with water, and the plaintiff is ready and willing to pay such sum as is properly required and to comply with all reasonable regulations; this allegation is denied by the answer. On the 18th of January, 1913, the defendant delivered to the plaintiff a notice that unless a bill for water rates amounting to $23 for the premises at 38 Bourne street was paid within a week thereafter, the water would be shut off, which, by the plaintiff's statement, would cause irreparable damage. The allegation of the delivery of the notice to the plaintiff by the respondent is admitted by the answer. The answer further avers that since the removal of the faucets the plaintiff and his tenants have used the bathtubs without the knowledge and consent of the defendant by drawing water into a pail by means of a faucet connected with a set bowl and the pipes connected with the defendant's system; that the plaintiff in his application for the use of water agreed to be governed by the defendant's rules; that when the contract was made between the defendant and the town of Bristol there were certain flat rates adopted as follows, which rates have remained continuously and are now in force: "Dwelling houses occupied by one family, for first faucet, $7.00. "For each additional faucet to be used by same family, $3,00. "For the first water-closet, self-closing, $5.00. "For each additional bathtub, $4.00. "When a water-closet or bathtub is used by more than one family, for each family, $5.00." The answer further avers that for a number of years prior to November 1, 1912, certain of the residents of Bristol supplied by the defendant with water have had bathtubs and other fixtures not directly connected by pipes with the defendant's supply and have used water in practically the same amount as This was acthough they were connected. complished by various devices, by having a bathtub set in the same room with the set bowl, and filling the bathtub with a rubber tube; by cutting a hole in the partition between the bathroom and the kitchen and by leading a tube or tin spout through the partition; by screwing a pipe into the flush tank of the closet or siphoning water from such flush tank. The answer further avers that for the early portion of the time this secret use of the water supplied by the defendant was a matter of small financial importance but recently it has increased until, to the knowledge of the defendant, there are more than 50 cases. In consequence of this, prior to November 1, 1912, the defendant adopted a rule which is numbered 16 and which is as follows: The answer further avers that since the year 1899 the plaintiff has owned the premises consisting of a house in which there are three tenements leased to different tenants; that in each of said tenements is a water faucet with a bowl connected with the sewerage system, and that in the tenement on the first floor and also in the tenement on the second floor there is a bathtub, to which there are no faucets attached to be used by furnishing water directly, but each of said tubs is connected with the sewerage system; that these tubs were installed when the house was built, and at that time water pipes provided with faucets connected with It further appears that the defendant gave the defendant's water system were installed the plaintiff notice of the adoption of this "16. No deduction will be made for fixtures claimed to be nonused; every fountain, watercloset, set basin, sink or other fixture used or not will be deemed and held used, and will be charged for so long as such fountain, watercloset, set basin, sink or other fixtures shall remain connected with the water pipe or waste pipe." about November 1, 1912, sent the plaintiff a The questions raised by the record are: (1) memorandum of the amount due at the rate Does rule 16, which was enacted November of $46 per annum or $23 for the then en- 1, 1912, work an increase in the charge for suing six months. This included a charge for water for domestic purposes in excess of the water to be furnished to faucets and rates established under the contract with the water-closets at the established rates, and town? (2) Is rule 16 a reasonable regulaalso a charge for water at the establish- tion? ed rates to be furnished for use in the two | [2] As to the first question we find no bathtubs. The plaintiff offered to pay for ground to sustain the plaintiff's contention everything but the amount charged for bathtubs, and upon the defendant refusing to accept that sum and sending him a notice of its intention to shut off the water as aforesaid, this bill was brought to enjoin such action. One of the rules is as follows: "17. The regular annual rate for the use of water shall be payable in advance semiannually, on the first day of May and November in each year. In all cases of nonpayment of the water rate in thirty days after the rent is due, the supply may be shut off and shall not be let on again except on payment of the rent due and the sum of two ($2.00) dollars." The averments of the answer, above set forth, are fully proved. The only issue between the parties therefore is as to the rightfulness of the defendant's charge for the use of the two bathtubs which were connected with the sewerage system but connected with which there was no faucet supplying water directly from the defendant's system. [1] In cross-examination the plaintiff admitted that, since the faucets were disconnected, the bathtubs have been used. that by virtue of "rule 16" there has been any increase of rates. "Rule 16" is not in the nature of a new rule; it is rather a notice to water takers that the defendant intends to enforce a rate already existing, and which was in force long prior to and in May, 1907, at the time when the defendant made its contract with the town of Bristol. As above shown the rate of $5 per annum for a bathtub installed upon the premises of the consumer was contained in the schedule of rates established by the company prior to May, 1907; and the same charge is now made to the plaintiff as shown by the testimony. It will be presumed in the absence of evidence to the contrary that the rates above set forth were adopted by the company in accordance with the experience of other water companies, and the fairness of these rates is nowhere disputed in this cause. The fact that the defendant' company for a number of years waived its right to charge this rate in cases where the customer, although having bathtubs in his house, had cut off the direct water supply to these tubs, furnishes "Q. 69. Mr. Walsh, how have these bathtubs no reason why the defendant should be held been used since you disconnected the faucets? A. I can't tell you how they have been used to continue this practice after it found that for six or seven years. When I lived there my customers were taking advantage of its lenwife used to take water in a pail and put it in iency, and, as in this case, were surreptithe tub. Q. 70. Where did she take the water tiously using water in bathtubs for which no from? A. From the kitchen sink. Q. 71. A water faucet connected with the Bristol & War- payment was made. The practice of chargran Water Company's supply? A. Yes, sir. Qing flat rates for water used through differ72. Filled the pail and then poured the water ent classes of fixtures and in connection with into the tub? A. Yes; carried it to the kitchen. Q. 73. Then pulled the plug and let the water various household appliances such as bathrun down the waste pipe into the sewer. A. tubs, closets, sinks, sprinklers, etc., is too Yes, sir. Q. 74. So far as you know that has well established and recognized to require been continued? A. So far as I know. One lady upstairs has been there ten years, and the any discussion, and no contention as to the one down stairs has been there between five and propriety of such practice is raised in this six years. What is going on there now I counsel which in any way support his contenNo cases are cited by the plaintiff's tion in this respect. can't say. I never see them using the tub. These admissions by the plaintiff are very significant, particularly when it appears that he did not call any of his tenants to show that these bathtubs were not used as claimed by the defendant. We think it is amply proved by these admissions that the plaintiff's bathtubs were being used by his tenants just as the answer claimed that they were. Upon this state of facts the presiding justice of the superior court entered his decree dismissing the bill, and plaintiff appealed as case. [3] As to the second question we find that rule 16 is a reasonable regulation. As above shown rule 16 is not strictly a new rule and does not vary previous regulations in force. Prior to November 1, 1912, the company, believing that the amount of water surreptitiously taken was trifling in financial value, made no effort to enforce payment for water furnished for use in bathtubs, unless that water was furnished directly through the pipes and fixtures attached to and adapted to be used with the tubs. As the company became aware of the extent of this surreptitious use it enacted rule 16, which practically notified its customers that thereafter it would insist upon payment which was connected with the system of sew-| Such a regulation for the sale of its water furerage. If water furnished by the company is used in a bathtub it is immaterial to the company how that water is obtained or to how much trouble the customer puts himself in order to obtain it; and the possibility of so using the water furnished by the company is sufficient to warrant the company in protecting itself against such use without having to prove that in a particular case it was so used, although in the case at bar such proof is furnished. That this rule is reasonable and is needed for the protection of the respondent corporation is shown not only by the testimony of the complainant above quoted, but also by the allegations of the answer which show the possibilities of consumers securing water from the respondent corporation surreptitiously and without payment therefor; and these allegations of the answer are fully sustained by the testimony of the treasurer of the respondent corporation given on the hearing of this case before the superior court and now brought before this court. nished through hydrants, where the quantity used cannot be or is not measured, is essential to protect the rights and safety of the company, and may be necessary to enable it to meet its obligations to the public, and its duty to furnish water to all inhabitants of the city alike and without discrimination. In determining the reasonableness or unreasonableness of a rule adopted by a water company chartered to supply a city and its people with water, we must necessarily take into consideration its relation to the city, and its compacted population, and the various elements composing such a population. It has no right to base a rule on the theory that the population, as a whole, is dishonest. But it the honest citizen what he pays for, will prevent has the right to adopt a rule which, while giving the dishonest from getting what he never paid for, and never intended to pay for, and said he never wanted." The parallel between the case cited and the case at bar is very close. The water company cannot be expected to furnish water without compensation. The ordinary and normal use of a faucet fixture does not include a supply to bathroom fixtures or appliances. The rates as established by the company are made in view of that fact, and water to ordinary toilet and bathroom fixtures. The rates contemplate that every inhabitant of Bristol who uses the company's water for the purpose of supplying a bathtub shall pay for such water. The most obvious method of obtaining such supply is by having a supply fixture or faucet at the tub itself. That was the common method adopted in Bristol in the early days of the history of the water company. Certain of the inhabitants afterwards discovered that if they had bathtubs connected with the sewer they could obtain the company's water for use in those bathtubs by various devices, already enumerated. A case closely in point is Harbison v. Knox-specified charges are made for the supply of ville Water Company (1899, Ch. App. Tenn.) 53 S. W. 993, in which case the general principle applicable to the question is stated and discussed, and a rule very similar to rule 16 is sustained as reasonable. In that case the defendant company refused to supply water to an inhabitant of Knoxville whose water was supplied by a hydrant with a bibb, upon the end of which was a screw, so that a hose might be attached, because of the refusal of the customer to pay the charge made for water for sprinkling-he claiming that he did not intend to use the fixture for sprinkling purposes-and because of his refusal to file down the screw on the bibb so that a hose could not be attached thereto. In the opinion written by Wilson, J., it is said: 53 S. W. 995: "The law is well settled that water companies organized and vested with the powers given to the defendant company, and obligated to furnish cities and their inhabitants with water, are in the nature of public corporations, engaged in a public business, and are charged with the public duty of furnishing to the cities and their inhabitants water, alike, and without discrimination and without denial, except for ground, and upon sufficient cause. It is equally well settled that such companies, while thus charged and obligated, may adopt reasonable rules for the conduct of their business and the operation of their plants, and such rules are binding on their patrons, and may be enforced, even to the extent of denying water to those who refuse to comply with them. The question, therefore, in every case of this character, is the reasonableness or unreasonableness of the rule assailed by the citizen asking for a supply of water, and invoked by the company in justification of its refusal to furnish it. It is obvious that if bathtubs are connected with the sewer in such a manner that cónsumers can supply themselves with water in any of the clandestine methods now in use, or in any which may hereafter be devised, it is impracticable for the company to maintain a constant watch upon the occupants of the several tenements to which the company supplies water, and it is only by the adoption of a rule like rule 16 that the company can efficiently protect its rights. The number of consumers using these indirect and unauthorized methods of obtaining a water supply for their bathtubs has been and is on the increase, and unless the company shall be sustained in enforcing rule 16 it is not difficult to forsee the time when the company will be compelled to furnish without compensation large and still larger in the territory supplied by the company. quantities of water for use in the bathtubs 53 S. W. 996: "The rule or requirement of the company that the party taking and paying for water for domestic purposes only must put The plaintiff cites one authority which his hydrant appliances in condition for such use seems at first sight to have a direct bearonly, and not have it in a condition to use wa- ing in support of his contention, viz., Farnter through and from them for sprinkling purposes, unless he pays a reasonable rental for ham, Water and Water Rights, vol. 1, p. 881: the use for the latter purpose, is, we think, rea- "The water company cannot refuse to fursonable, and one that the company can enforce. Inish water because there are bath accommoda tions on the premises, and the privilege of water | a matter of general equity practice, and also for such purpose is not paid for, if they are not connected with the water supply." This text-writer cites only one authority in support of the text quoted, namely, Sheffield Waterworks v. Brooks, L. R. & Q. B. Div. p. 632. This case, however, throws no light upon the question now before the court. as a citizen and property owner in the town of Bristol and by reason thereof entitled to the protection of the contract made between the company and the town in respect to rates. See Edwards v. Milledgeville Water Co., 116 Ga. 201, 42 S. E. 417 (injunction), and cases cited, supra; Pond v. New Rochelle Water Co., 183 N. Y. 330, 76 N. E. 211, 1 L. R. A. (N. S.) 958, 5 Ann. Cas. 504 (injunction); Robbins v. Bangor Ry., etc., Co., 100 Me. 496, 62 Atl. 136, 1 L. R. A. (N. S.) 963 (mandamus); Smith v. Birmingham W. W. Co., 104 Ala. 315, 16 South. 123 (injunction); Levy v. New Orleans W. Co., 38 La. Ann. 25 (injunction); Ernst v. Same, 39 La. Ann. 550, 2 South. 415 (injunction); Rogers Park W. Co. v. Fergus, 178 Ill. 571, 53 N. E. 363 (mandamus). In two of these cases, as indicated, the proceeding was by way of mandamus; in the rest by injunction. The defendant makes no contention on this point. Defendant cites a few other cases sustain That case was an appeal from an adjudication of a magistrate upon a criminal complaint against the waterworks to recover a penalty for not furnishing a supply of water. The complaint was made under a statute. In the opinion it was stated that the primary question is whether, under the statute, the water company has the right to require the consumer to furnish a meter, and that the secondary question is whether under the statute the water company has the right to refuse to furnish water for domestic purposes other than for baths to premises where the connection between the water supply and the faucet at the bathtub has been severed, but the waste pipe of the tub remains connected ing as reasonable certain rules adopted by with the sewer, against the expressed objec- water companies for the protection of its lon of the water company. The statute un- plant and to prevent waste of water. See der which the complaint was brought enu- Louisville Water Co. v. Wiemer, 180 Fed. merates the causes which permit the water 257, 64 C. C. A. 503; Pocatello Water Co. v. company to shut off the supply of water, and Standley, 7 Idaho, 155, 61 Pac. 518; Kimball the case decided that the circumstances were v. N. E. Harbor W. Co., 107 Me. 467, 78 Atl. not within the statutory provisions. There 865, 32 L. R. A. (N. S.) 805; Watauga W. Co. was no general regulation of the water comv. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63 Am. pany applying to the situation, nor did the St. Rep. 841. These cases are simply referfacts disclose any situation such as is dis- red to for the purpose of showing what rules, closed in this case of a determination on the either general or special, courts have considpart of the consumers to obtain water with-ered reasonable under peculiar circumstaneout paying therefor. The reasonableness of a regulation requiring payment upon the basis of a bathtub, although such tub is not directly connected with the water supply, but is connected with the sewer, was neither raised nor considered. See, also, Allen v. Duluth Gas & Water Company, 46 Minn. 290, 48 N. W. 1128. The company has the right to cut off a water supply for nonpayment of proper charges. It is not understood that this principle is questioned, but see the following cases: Farnham on Waters, etc., vol. 1, p. 876; Hieronymus Bros. v. Bienville Water Supply Co., 131 Ala. 447, 31 South. 31; Robbins v. Railway Co., 100 Me. 496, 62 Atl. 136, 1 L. R. A. (N. S.) 963; Harbison v. Knoxville Water Company, supra; Poole v. Paris Mountain Water Co., 81 S. C. 438, 62 S. E. 874, 128 Am. St. Rep. 923; Wood v. Auburn, 87 Me. 287, 32 Atl. 906, 29 L. R. A. 376; Girard L. Ins. Co. v. Philadelphia, 88 Pa. 393. We find no cases cited on behalf of plaintiff which in any way or to any extent support his contention that rule 16 is unreasonable under the undisputed facts of this case; all such cases have been carefully examined, but we find none which requires comment further than as above. Plaintiff cites several cases which support his right to the remedy by injunction both as es. This court is of the opinion, upon all the facts in evidence, that the complainant has shown no equity for relief under his bill. The decree appealed from, dismissing the bill, is affirmed, and the cause is remanded to the superior court for the counties of Providence and Bristol, with direction to vacate the preliminary injunction which has been continued in force pending this appeal. CHASE v. CRAM. (No. 324.) APPEAL AND ERROR 1152-MODIFICATION The decision of the Supreme Court, and the decree, in suit for an injunction to restrain interference with a water right, that the grant to complainant of the privilege to take water from a spring conferred a right which passed to her heirs and assigns, was unaffected by the decisuit establishing that the former complainant's sion of the Supreme Court, and the decree, in right to take water was an easement in gross, so that petition for modification of the decree in the latter suit to protect the "heirs and assigns," who were protected by the first decree, will be denied. Error, Cent. Dig. 88 4483-4496; Dec. Dig. & |
